Alcopops: State by State Battle to End Corporate Tax Fraud

Simon Rosen and Michele Simon from the Marin Institute describe how Alcopops, sweetened alcohol beverages, slip through a US corporate tax loophole, allowing the drinks to be marketed like beer. They call for the reclassification of alcopops as an alcohol spirit and provide an analysis of the potential health benefits of such a change.

Simon Rosen, MA, is a research analyst and Michele Simon, JD, MPH is the director of research and policy at Marin Institute, an alcohol industry watchdog group based in San Rafael, California

Alcopops are a relatively new product category in the United States. The alcohol industry labels the youth-friendly products “flavored malt beverages” to take advantage of more favorable tax rates for beer. Beer is taxed at much lower rates than are distilled spirits in the U.S. and is often sold in grocery and convenience stores, making it more widely available. Interestingly, in other countries, manufacturers do not call alcopops “malt beverages,” and indeed some companies proudly market their products as containing spirits. For example, while Smirnoff Ice is touted for containing vodka in the United Kingdom, the exact same brand in the U.S. is labeled as a malt beverage. No matter where they are sold, alcopops are sweetened, often bubbly and fruit-flavored, and designed to resemble soda pop or other soft drinks. Alcopops fuel the underage drinking epidemic by serving as a transition for young people from soft drinks to alcohol.

The proper regulatory classification in the U.S. for these products has become a matter of policy debate in recent years. Testing by the federal government in 2003 determined that the majority of the alcohol in alcopops is obtained from distilled spirits (1). Also, the drinks are often branded with spirit names, such as Smirnoff and Bacardi. Moreover, according to the U.S. Alcohol and Tobacco Trade and Tax Bureau (TTB), these drinks:

[E]xhibit little or no traditional beer or malt beverage character. … Brewers … remove the color, bitterness, and taste that are generally associated with beer. … This leaves a base product to which brewers add various flavors, which typically contain distilled spirits, to achieve the desired taste profile. (1).

Nevertheless, at the federal level, alcopops are classified as flavored malt beverages and taxed at the lower beer rate. A 2005 compromise ruling by TTB allows industry to make alcopops with up to 49 percent of the alcohol derived from distilled spirits, with the rest coming from beer, and still take advantage of the more lenient beer classification. (2) By making products that don’t taste or look like beer, and are not called beer, while still convincing regulators to classify alcopops as beer (making them more readily accessible to youth), the alcohol industry is engaging in a deceptive charade that can best be described as tax fraud. And that has sparked a national controversy.

Correcting the Deception:  Reclassifying Alcopops as Spirits

U.S. states have independent legal authority to classify alcohol products. Thus, all 50 states have their own laws that define the different categories of alcohol. Some state laws are in conflict with the federal ruling because in many states, the distinction between what can be labeled a beer and a spirit is clear, and the law does not allow for the 49/51 percent hybrid that the federal government has created.

Until recently, all states followed the federal government in classifying alcopops as beer. But thanks in large part to public outcry by advocates concerned with underage drinking, states have begun to reconsider this policy. Thus far, Maine, California, and Utah have decided to reclassify alcopops as distilled spirits and several other states are considering doing so. Essentially these states are correcting the error of regulators having misclassified alcopops for years.

Saving Lives and Money with Higher Alcopops Taxes

Because U.S. states tax distilled spirits at far higher rates than beer, correct classification would significantly increase the tax on the products. The exact change would differ considerably between states. In Oklahoma, for example, the increase would be $5.16 per gallon, but in others, such as South Dakota, the tax rise would be much smaller, only 65 cents per gallon. However in all states, taxes would increase, which could prove highly effective in reducing alcopops consumption, particularly among youth. (3) The academic literature shows that increasing taxes and prices causes drinkers to purchase and drink less alcohol. (4)

Germany, Switzerland, Denmark, France, the U.K., and most recently Australia have all significantly increased the tax on alcopops in the last few years, and other nations (such as the Netherlands and Finland) have considered proposals to do so.

For those countries for which data are available (Germany, the U.K., and Switzerland), the results suggest that alcopops consumption fell heavily after the taxes increased, and that decreased sales of alcopops were not substituted by other alcoholic beverages. (5, 6, 7)

Given the availability of these European consumption data, the Marin Institute research department undertook an analysis of each U.S. state to determine the cost savings, both in terms of lives and money. We determined the total impact nationally, if every state that could do so made the corresponding tax change. Assuming that drinkers in the U.S. respond similarly to tax increases as in other countries (and we have no reason to believe they wouldn’t), our results showed that taxing alcopops as spirits could significantly help curb underage drinking and its related costs. In New York for example, taxing alcopops as spirits could reduce consumption by 28 percent, saving 7 lives and $150 million in underage drinking costs annually. In the largest state, California, consumption levels would drop 35 percent and 21 lives and $437 million would be saved each year. Every state would see a significant impact.

While 29 states may be incorrectly taxing alcopops as beer instead of spirits, we limited our analysis to the 22 non-“control states” where the tax increase could be calculated. (About 18 “control states” have government monopolies over some alcoholic beverages, and in these states, a change in classification would be less predictable.) By excluding control states from our analysis, we are underestimating the potential national impact.

If alcopops were correctly taxed as spirits by all the states we examined, consumption would fall on average by 26 percent, and could prevent more than $1.5 billion in underage drinking costs, 72 deaths and more than 59,000 incidents of harm from underage drinking nationally (i.e., crime, high-risk sex, traffic collisions, etc.).

In addition, in the control states, reclassification to spirits would not only increase prices, but also greatly reduce distribution and availability of alcopops as they could be sold only through state-run liquor stores. Research suggests the impact of removing alcopops from convenience stores and supermarkets is likely to be highly effective in reducing both consumption and alcohol related problems. (8) Several control states are considering this policy change, with Utah leading the way by successfully reclassifying alcopops as distilled spirits in early 2008.

Racing Against a Powerful Industry

The policy reasons to correctly classify alcopops as distilled spirits are clear—underage drinking can be reduced, lives saved, and costs prevented. However, states have to act quickly because the alcohol industry is flexing its lobbying muscle to rewrite state laws. So far, under severe pressure from the alcohol industry, at least seven states that were incorrectly taxing alcopops as beer have passed laws to change the definition of alcopops to match the federal ruling allowing hybrid products, and therefore will maintain the status quo. The remaining states that can still make the correction must do so before the alcohol industry gets to the state legislatures to change the law in its favor. So we are engaged in a state-by-state race to protect youth.

In the spring of 2008, despite a valiant effort by advocates, a political battle over how to define alcopops in Maryland was lost. If industry continues on this path, the ability for the remaining states to reclassify alcopops will be severely threatened. At least twenty-one states currently have laws that indicate alcopops should be correctly classified as distilled spirits and not beer, and taxed and sold accordingly. These states must act now. Policymakers in Maine, California, and Utah have already demonstrated that the political will exists to make this critical change. Other U.S. states should waste no time in following their lead by stopping industry’s alcopops fraud.

References

(1) U.S. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau. Federal Register, March 24, 2003. Notice No. 4. Vol.68, No. 56. Online: http://www.ttb.gov/alcohol/rules/ttbnotice_no4.pdf.

(2) U.S. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau. Flavored Malt Beverage and Related Regulatory Amendments, 70 Federal Register 1 (January 3, 2005) (codified 27 CFR Parts 7 and 25).

(3) Grossman, M., Chaloupka, F.J., Saffer, H., Laixuthai, A., Effects of Alcohol Price Policy on Youth: A Summary of Economic Research. Journal of Research on Adolescence 4(2): 347-364. 1994.

(4) Chaloupka, F.J., Grossman, M., Saffer, H., The Effects of Price on Alcohol Consumption and Alcohol-Related Problems. Alcohol Res. Health 26(1): 22-34, 2003.

(5) Bundeszentrale für gesundheitliche Aufklärung [BZgA], Alkoholkonsum der Jugendlichen in Deutschland 2004 bis 2007 [Consumption of Alcohol by young people in Germany 2004 to 2007]. Bundeszentrale für gesundheitliche Aufklärung. 2007.

(6) Her Majesty’s Revenue and Customs, UK trade info Alcohol Factsheet. Crown Copyright. 2007.

(7) Swiss Alcohol Board, 2007

(8) Babor TF, Caetano R, Casswell S, Edwards G, Giesbrecht N, Graham K, Grube J, Gruenewald P, Hill L, Holder H, Homel R, Osterberg E, Rehm J, Room R and Rossow I (2003)  Alcohol and Public Policy: No Ordinary Commodity; Research and Public Policy.  Oxford University Press.

 

Photo Credits:
1. Cian O’Donovan